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Rogers v Assets Loan Co Pty Ltd

Rogers v Assets Loan Co Pty Ltd

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Case Copied 21 August 2008 26 min read

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FEDERAL COURT OF AUSTRALIA
Rogers v Asset Loan Co Pty Ltd [2008] FCA 1304
PRACTICE AND PROCEDURE – application for leave to appeal against interlocutory judgment – where no reasonable prospect of success for the proposed appeal - application dismissed
Australian Securities and Investments Commission Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 24, 24(1A), 31A
Trade Practices Act 1974 (Cth)
Federal Court Rules O 14 r 8, O 52 r 4, O 52 r 7
Décor Corporation Pty Ltd v Dart Industries Inc (1993) 33 FCR 397 applied
Rogers v Asset Loan Pty Ltd [2007] FCA 1371 cited
Reichel v Magrath (1889) 14 App Cas 665 cited
Thirteenth Corp v State (2006) 232 ALR 491 cited
Dey v Victorian Railway Commissioners (1949) 78 CLR 62 cited
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 cited
White Industries Aust Ltd v Commissioner of Taxation (2007) 160 FCR 298 cited
Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 55 cited
Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 1371 cited
Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 339 cited
Re A Debtor [1958] 1 Ch 81 at 99 cited
LYNNE MAREE ROGERS v ASSET LOAN CO PTY LTD ACN 107 746 798, ASSET LOAN COMPANY PTY LTD ACN 101 054 997, PAUL ALEXANDER SYDNEY HARE, RUSSELL FRANK PERCIVAL, JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST, RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2 and SEAN WHITTLE
QUD375 OF 2007
LOGAN J
21 AUGUST 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD375 OF 2007

BETWEEN:

LYNNE MAREE ROGERS
Applicant

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
First Respondent

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
Second Respondent

PAUL ALEXANDER SYDNEY HARE
Third Respondent

RUSSELL FRANK PERCIVAL
Fourth Respondent

JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST
Fifth Respondent

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2
Sixth Respondent

SEAN WHITTLE
Seventh Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

21 AUGUST 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD375 OF 2007

BETWEEN:

LYNNE MAREE ROGERS
Applicant

AND:

ASSET LOAN CO PTY LTD ACN 107 746 798
First Respondent

ASSET LOAN COMPANY PTY LTD ACN 101 054 997
Second Respondent

PAUL ALEXANDER SYDNEY HARE
Third Respondent

RUSSELL FRANK PERCIVAL
Fourth Respondent

JUDITH LORRAINE HARE AS TRUSTEE FOR THE HARE PROPERTY TRUST
Fifth Respondent

RIVERSTONE NOMINEES PTY LTD ACN 063 086 546 AS TRUSTEE FOR THE PERCIVAL FAMILY TRUST NO 2
Sixth Respondent

SEAN WHITTLE
Seventh Respondent

JUDGE:

LOGAN J

DATE:

21 AUGUST 2008

PLACE:

BRISBANE

REASONS FOR JUDGMENT

The Applicant, Mrs Lynne Maree…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 1304
Decision Date: 21 August 2008

CaseChat Overview and Summary

Rogers brought an application against Assets Loan Co Pty Ltd seeking an order for the company to pay him $14,500. The company argued that it was not liable to pay the amount sought. The matter was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether the company was liable to pay the applicant the sum claimed. The court had to determine if there was a valid contract between the parties that entitled the applicant to the payment and if the company had breached any contractual obligations. The court found that there was no evidence of a contract or any other legal basis for the company to be liable to pay the applicant. The court held that the applicant had failed to establish a prima facie case and dismissed the application. The court found that there was no evidence of any agreement between the parties that would entitle the applicant to the payment claimed. The court also found that the applicant had not demonstrated any entitlement to the payment sought under any other legal theory. The court dismissed the application and ordered that the applicant pay the company's costs.

Orders

Orders of the court

1. The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LOGAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LOGAN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD375 OF 2007

JUDGE:	LOGAN J
DATE OF ORDER:	21 AUGUST 2008
WHERE MADE:	BRISBANE

JUDGE:	LOGAN J
DATE:	21 AUGUST 2008
PLACE:	BRISBANE